Case Number: PSES i19 30/04 MP
Applicant: MR SEDIBE
Respondent: DEPARTMENT OF EDUCATION MP
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: ADV O C MABASO
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES i19 - 30/04 MP
In the arbitration between:
MR. SEDIBE APPLICANT
MPUMALANGA DEPARTMENT OF EDUCATION RESPONDENT
1 . DETAILS OF THE HEARING AND REPRESENTATION
1.1 The Applicant is Mr. Sedibe, a former employee of the Respondent who resigned for the public service. He is represented by Mr. E Mazibuko a practising attorney. The Respondent is the Mpumalanga Department of Education represented by Mr. W Kutumela and Mr. Mabuza both forms the employ of the Respondent.
2 . INTRODUCTION
2.1 It is common cause that the respondent advertised the position of the DCES Educators in the Sunday Times of 3 November 2002 and the closing date was 22 November 2002.
2.2 For all practical purposes the Respondent advertised the post countrywide. Inferences can be drawn on a balance of probabilities that competent candidates were needed.
2.3 It is further common cause that the Applicant complied to the closing date and his application was handed to the department on 19 November 2002 and the Applicant’s version was that he was unfairly treated on the short-listing of the candidates was done and that his application was misquoted in the computer.
2.4 It was further submitted by the Applicant that he was tipped of the irregularity by one official of the department about this procedural flow, he also submitted that M J R Nkosi intervened and requested him to fill another application form during 2003, months after the closing date and making the irregularity worse. Mr. Nkosi and the official who tipped the Applicant were not called by the Applicant to testify about this allegation.
2.5 The Applicant now seeks an award for appointment as a DCES educator, ABET section or alternatively compensation should in either of these relief be granted should it be found that his exclusion was unfair.
2.6 On the other hand the Respondent argued that the intention of advertising the post nationally was that such positions required high level expertise. The testimony of Mrs. Buys was that she was personally involved in the compiling of both the long list and the short list, she told the proceedings that 106 applications were received and the shortlist came up with 6 candidates who qualified to be interviewed in arriving at this, she made sure alle the applicants have got the necessary prerequisites as indicated in the advert. She also testified that she does not know the Applicant in certain workshops of ABET related activities and she constantly denied of having excluded the applicant otherwise.
2.7 A problem became apparent that the Respondent intended to call only Mrs. Buys as their witness and constituted the evidence of a single witness just like in rape cases which normally happens in the dark or in isolated areas. Arbitrator insisted that it is going to be problematic to view the evidence of a single witness as being admissible or inadmissible and obviously is gonna prejudice any of the parties. He exercised his right to call any other person who might have sufficient information to can assist the arbitration proceedings, the respondent came up with the name of Bhekinkosi Nkuna was requested to advise Mr. Nkuna to appear on 8 August 2003.
2.8 On 8 August 2003, Mr. Nkuna took the witness stand and testified that he was responsible to draw a checklist of all the requirements in each application form as required by the selection criteria. This approach was according to Mr. Nkuna an opportunity to can assist Mrs. Buys as to qualifies and who does not qualify. Neither of the parties examined the witness during his testimony this was only the inquisitorial approach of the Arbitrator.
3 . ANALYSIS OF THE DISPUTE
3.1 Let me refer you to insurance law, the rules are that it is the duty of the insured on a proposal form to disclose to the insurer all the risk pertaining to the contract of insurance, this will give the insurer an opportunity to determine whether to cover the risk if yes what would be the premium. Should the insured not disclose all material facts and it is later discovered that the insured did not act bonafide such a premium will be incorrect and the insurer can cancel the contract and the insured would not be entitled to a refund of what he or she has already paid to the insurer because he shall have been the author of the consequence.
3.2 The Applicant in this case did not disclose all material facts to can assist Mrs. Buys to can takes a convincing decision even the information which the Applicant has placed before the Respondent it is not enough to can meet the requirements of the post. Take an example of a registration with the South African Council of Educators which is a prerequisite for any teacher to be appointed in the teaching field. The Applicant did not even disclose all relevant experience pertaining to the post.
4 . AWARD
4.1 The exclusion of the Applicant for the post of DCES Educator ABET section is found to be both procedurally and substantively fair.
4.2 The application to have the Applicant appointed as a DCES educator is dismissed.
4.3 There is no compensation as sought by the Applicant.
Advocate O C Mabaso
To: General Secretary ELRC
Fax No. 012 - 663 7446
And to Mr. W Kutumela
Fax No. 013 - 766 5596
And to Mr. E Mazibuko
Fax No. 013 - 752 2008
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES i19 30/04 MP
APPLICANT MR SEDIBE
RESPONDENT DEPARTMENT OF EDUCATION MP
NATURE APPLICATION (FOR POST)
ARBITRATOR ADV O C MABASO
DATE OF ARBITRATION 6 & 8 AUGUST 2003
APPLICANT MR E MAZIBUKO
RESPONDENT MR W KUTUMELA & MR MABUZA
DATE OF AWARD